OTTAWA - The Supreme Court of Canada has upheld the conviction of a man for using a firearm while committing a break-in, even though the defendant may not have actually been carrying the gun at the time.
In a unanimous ruling, the nine-member court said an offender "uses'' a firearm within the Criminal Code definition, even if he only makes it known "by words or conduct'' that a gun is available.
The justices said a weapon must be in the physical possession of the offender or "readily at hand.''
And they said the usual rules of complicity apply to others involved in the crime.
The case involved Andre Omar Steel, who was convicted of a break-in at a B.C. marijuana grow operation.
The occupants of the home heard Steele and his accomplices warn them "we have a gun,'' "get the gun, get the gun,'' and "get the gun out'' before one of them pulled a dark metal object from inside his jacket; police captured the four and found several weapons in their car, including a loaded handgun.
The original trial judge found that the intruders all intended to carry out a break-in and a gun was used to the knowledge of all four.
The B.C. Court of Appeal upheld the conviction and the Supreme Court agreed.
"Use includes discharging or pointing a firearm or displaying a firearm for the purpose of intimidation while committing an offence but the test is not met by mere possession of a firearm, idle threats that refer to a firearm, or evidence that a weapon was proximate for future use,'' Justice Morris Fish wrote on behalf of the court.
Section 85 (1) of the Criminal Code relates to "situations where the firearm is at the ready for present rather than future use,'' he said.
"Here, the accused and his accomplices `used' a firearm within the meaning of . . . the Criminal Code. They repeatedly referred to a firearm in their physical possession or readily at hand in order to facilitate the commission of the indictable offence of break and enter.''
